SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2964-15T2

MARLENE MORGAN,

Plaintiff-Respondent,

v.

PROGRESSIVE INSURANCE COMPANY

and/or PROGRESSIVE GARDEN

STATE INSURANCE COMPANY,

Defendant-Appellant.

______________________________________________

Argued October 3, 2017 – Decided

Before Judges Yannotti, Carroll and Mawla.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. 

L-4987-13.

Jennifer A. Hindermann argued the cause for 

appellant (Cooper Maren Nitsberg Voss & 

DeCoursey, attorneys; Ms. Hindermann, on the 

briefs).

Michael H. Foster argued the cause for 

respondent (Stark & Stark, attorneys; Mr. 

Foster, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

November 8, 2017
2 A-2964-15T2

Plaintiff Marlene Morgan asserted a claim against defendant 

Progressive Insurance Company and/or Progressive Garden State 

Insurance Company for underinsured motorist (UIM) coverage arising 

from a motor vehicle accident, in which she allegedly sustained 

personal injuries. Defendant appeals from the judgment for 

plaintiff entered by the trial court on April 1, 2016. We affirm.

I.

On November 28, 2008, plaintiff was a passenger in a vehicle 

being driven by Gregory Moten westbound on Evesham Road in Cherry 

Hill. At the time, Ashoke Das was operating a vehicle in the 

opposite direction. According to plaintiff, Das attempted to make 

a left turn onto Caldwell Road in front of the Moten vehicle.

Das's vehicle struck the front of the Moten vehicle, and plaintiff 

sustained certain injuries.

Thereafter, plaintiff filed suit against Das and settled her 

claim against him for the limits of his insurance coverage, 

$15,000. Plaintiff then filed this action against defendant 

seeking UIM benefits. At the time of the accident, plaintiff had 

an automobile policy with defendant, which provided $50,000 in UIM 

coverage. 

The parties stipulated that Das was solely responsible for 

the accident, but defendant maintained plaintiff had not 

established she sustained injuries that met the limitation-on-
3 A-2964-15T2

lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the 

Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A1.1 to -35. The matter was tried before a jury. 

At the trial, plaintiff testified that she sustained multiple 

injuries in the November 28, 2008 accident. Plaintiff stated that 

she worked for an entity that provides services to individuals

with disabilities. She said she had been in an auto accident in

November 2007 and sustained injuries to her neck and lower back. 

Since the accident occurred while she was on the job, she had to 

seek health care through her employer's occupational health

services. 

Plaintiff stated that by the end of 2007, she had completed 

treatment for the November 2007 accident. Plaintiff said she did 

not have any continuing problems with her neck, lower back, middle 

back, or upper back. She stated that she was able to return to 

work without any restrictions. She also stated that she was able 

to go back to her usual activities, which included spending time 

with her grandchildren, performing household chores, and bowling. 

Plaintiff further testified that in the days after the 

November 28, 2008 accident, she woke up and could not move her 

neck and upper back. She went to see her primary care physician, 

and later saw a chiropractor. She told the chiropractor that she 

had pain in her neck and upper back, and at times pain radiated 
4 A-2964-15T2

down her left arm. In addition, plaintiff had painful spasms in 

her back and chest every day. 

Plaintiff treated with the chiropractor for about two years. 

She believed the treatment had provided some relief but the pain 

returned. The chiropractor referred plaintiff for tests and MRIs 

were performed. Plaintiff testified that the tests showed she "had 

a bulging dis[c] or something like that" in her neck and upper 

back.

Plaintiff was referred to an orthopedist, who prescribed 

medication and an injection, which provided some relief for about 

eight months. The doctor told plaintiff she could have additional 

injections or surgery. Plaintiff elected not to have surgery. She 

testified that she continued to work because she had to do so. 

She said she "just worked through the pain." 

Plaintiff stated that the November 28, 2008 accident had 

limited her usual activities. She testified that she spends time 

with her grandchildren, but she is no longer able to pick them up 

when she wants to. Plaintiff enjoys bowling and participated in a 

bowling league, but can no longer engage in that activity. 

Plaintiff said she does not perform household chores as she used 

to. She explained that someone must accompany her to the grocery 

store and laundromat. She also said she lives with neck and upper 

back pain every day. 
5 A-2964-15T2

Plaintiff further testified that after the November 28, 2008 

accident, she sustained other injuries. While working, plaintiff 

strained her elbow when assisting an individual with cerebral 

palsy. She also suffered an electric shock when checking a smoke 

alarm in the workplace. After these incidents, plaintiff saw 

doctors, but she did not require further medical care for her neck 

or back. 

Plaintiff also had an accident during a work-related outing 

while riding in a bumper car with a client. Plaintiff hurt her 

leg, knee, and ankle. She went to a doctor, but testified that she 

did not hurt her neck or back. In addition, plaintiff slipped and 

fell backwards while bowling. She testified, however, that she did 

not injure her neck or back when she fell. 

At the trial, plaintiff presented the videotaped testimony 

of her medical expert, Dr. Gary Goldstein, who stated that 

plaintiff had a cervical disc herniation, which was produced or 

made symptomatic by the November 28, 2008 accident. Dr. Goldstein

testified that plaintiff was permanently symptomatic as a result 

of the accident. 

The doctor said plaintiff had been in "some kind of accident" 

in 2007 and plaintiff had injured her neck and back, but she did 

not have any ongoing residual complaints. The doctor testified

that when plaintiff was referred to him, he conducted a general 
6 A-2964-15T2

physical examination. He also performed various tests, including 

range-of-motion tests. 

The doctor explained that in February 2009, plaintiff had 

MRIs of her neck as well as her mid- and lower-back. The doctor 

reviewed the reports of the MRIs, and stated that plaintiff had 

"some minor bulging throughout her neck" but the bulge at the C5-

6 level of the spine was larger. He thought the MRI showed a "low 

grade herniation," which was consistent with plaintiff's 

complaints of central neck pain with pain radiating to the arm. 

Defendant presented the videotaped testimony of Dr. Brian K. 

Zell, who performed an independent medical evaluation of 

plaintiff. Dr. Zell examined plaintiff and reviewed the

radiographic studies. He testified that plaintiff had been 

involved in an auto accident on November 28, 2008, and sustained 

a possible cervical strain and possible strain to the lower back. 

Dr. Zell opined that plaintiff had degenerative disc disease 

of the cervical spine, which was a pre-existing condition 

unrelated to the November 28, 2008 accident. He further testified

that plaintiff had degenerative disc disease to the lower back, 

particularly at the L4-5 level of the spine, which also was 

unrelated to the accident. Dr. Zell stated that he found no 

evidence of cervical or lumbar radiculopathy, meaning 
7 A-2964-15T2

"reproducible findings that traveled" from the neck into her arms, 

or from her lower back into her legs.

At the conclusion of the trial, plaintiff requested a jury 

instruction on aggravation of a pre-existing condition. The judge

granted the request over defendant's objection. In addition, 

defendant sought an adverse inference with respect to the loss of 

the litigation file pertaining to the workers' compensation claim 

plaintiff asserted following the November 10, 2007 accident. The 

judge denied the application. 

The jury found that plaintiff had sustained a permanent injury 

that was proximately caused by the November 28, 2008 accident, and 

awarded plaintiff $60,000 in damages. The judge molded the jury 

verdict to reflect the $50,000 limit on plaintiff's UIM coverage, 

and reduced that amount by the $15,000 plaintiff had recovered 

from Das. 

Thereafter, defendant filed a motion for a new trial. The 

judge heard oral argument on February 5, 2016, and on that day 

entered an order denying the motion. 

Plaintiff also sought attorney's fees, costs, and interest 

under the offer of judgment rule. R. 4:58-1(a); R. 4:58-2(b). 

Prior to trial, plaintiff had made an offer of judgment for 

$29,000. The judge granted the application and ordered defendant 

to pay plaintiff attorney's fees in the amount of $15,050, costs 
8 A-2964-15T2

and expenses totaling $4,778, and interest of $1,036. These amounts 

were added to plaintiff's modified award, resulting in a total 

judgment of $55,864. This appeal followed.

On appeal, defendant argues that: (1) the trial judge 

improperly precluded defendant from using plaintiff's statements 

in certain medical records for impeachment; (2) the judge erred 

by providing the jury with a charge for aggravation of a preexisting condition, and by failing to tailor the charge to the 

facts of this case; (3) the judge should have provided an adverse 

inference charge regarding the loss of the litigation file 

pertaining to the plaintiff's prior accident; (4) the judge should 

have instructed the jury that in an action under AICRA's 

limitation-on-lawsuit threshold, range-of-motion tests are not 

recognized as objective credible evidence of a permanent injury; 

and (5) defendant was entitled to judgment notwithstanding the 

verdict. 

II.

We turn first to defendant's argument that the trial judge 

erred by precluding defendant's counsel from questioning plaintiff 

about statements attributed to her in a doctor's report. As noted 

at trial, plaintiff testified that as a result of the November 28, 

2008 accident, she has experienced limitations in certain
9 A-2964-15T2

activities, including the performance of household chores and 

bowling. 

On cross-examination, defendant's attorney began to question 

plaintiff about complaints attributed to her in reports by Ralph 

G. Cataldo, a doctor of osteopathic medicine, dated February 1, 

2012, and June 7, 2013. It appears that Dr. Cataldo examined 

plaintiff as a result of workplace injuries that plaintiff 

sustained after the November 28, 2008 accident. The reports were 

apparently obtained for the purpose of asserting workers' 

compensation claims.

The first report related to the injuries plaintiff sustained 

when she assisted a client and when she checked the smoke detector

in the workplace. The second report related to the bumper-car 

accident. Both reports list plaintiff's complaints, which include 

limitations on her ability to perform household chores and engage 

in bowling. 

Plaintiff's attorney objected to the use of Dr. Cataldo's 

reports for cross-examination. The judge sustained the objection, 

finding that the statements attributed to plaintiff were hearsay. 

The judge stated that if defendant wanted to present the 

statements, defendant had to present Dr. Cataldo as a witness.

On appeal, defendant argues that the judge erred by precluding 

its attorney from questioning plaintiff regarding the complaints 
10 A-2964-15T2

attributed to her in Dr. Cataldo's reports. Defendant asserts that 

the statements were admissible under the hearsay exception in 

N.J.R.E. 803(b)(1) for statements of a party opponent. Defendant 

argues that the statements were admissible because they did not 

involve any complex medical diagnosis. 

The trial court's evidentiary rulings are reviewed under an 

abuse-of-discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 

(2008). However, we apply a de novo standard of review in 

determining if the trial court correctly interpreted and applied 

the evidence rules. Konop v. Rosen, 425 N.J. Super. 391, 401 (App. 

Div. 2012) (citing Pressler & Verniero, Current N.J. Court Rules, 

comment 4.6 on R. 2:10-2 (2012); State v. Darby, 174 N.J. 509, 518 

(2002)). 

The statements attributed to plaintiff in Dr. Cataldo's 

reports are hearsay because defendant intended to offer the

statements to prove that plaintiff reported those complaints to 

Dr. Cataldo. See N.J.R.E. 801(c) (defining hearsay as a statement, 

"other than one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the 

matter asserted."). 

Defendant correctly notes that N.J.R.E. 803(b)(1) provides 

an exception to the rule against admission of hearsay for 

statements by a party opponent. However, the statements were 
11 A-2964-15T2

contained in a doctor's reports, which were apparently obtained 

for the purpose of litigating workers' compensation claims. 

Defendant did not, however, lay a proper foundation for the 

admission of the reports as business records under N.J.R.E.

803(c)(6). Defendant did not establish that the documents were 

made in the regular course of business, or that it was the regular 

practice of the business to make the record. Hahnemann Univ. Hosp. 

v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996). 

We therefore conclude that the trial judge did not abuse his 

discretion by precluding defendant from questioning plaintiff 

about the statements in the reports.

III.

Next, defendant argues that the trial judge erred by charging 

the jury on aggravation of a pre-existing condition. The 

aggravation charge states in relevant part that 

If you find that [plaintiff's] preexisting 

illness/injury(ies)/condition was not causing 

him/her any harm or symptoms at the time of 

the accident, but that the preexisting 

condition combined with injuries incurred in 

the accident to cause him/her damage, then 

[plaintiff] is entitled to recover for the 

full extent of the damages he/she sustained.

[Model Jury Charge (Civil), 8.11F "Aggravation 

of the Preexisting Disability" (1997).]
12 A-2964-15T2

A. Lack of Notice of Claim of Aggravation. 

Defendant argues the judge erred by granting plaintiff's 

request for the charge because plaintiff did not plead or place 

defendant on notice that she was pursuing a claim for aggravation 

of a pre-existing condition. We disagree. The judge did not err 

by finding that defendant was on notice that plaintiff was 

asserting such a claim.

Here, defendant served interrogatories upon plaintiff and 

plaintiff was asked if she was claiming that she sustained an 

injury in the subject accident that aggravated a pre-existing 

condition. In her answer, plaintiff objected to the question on 

the ground that it asked for a legal or medical opinion, which she 

was not qualified to provide. Nevertheless, without waiving that 

objection, plaintiff stated that she would rely upon the opinion 

and testimony of her medical expert. 

In his report, Dr. Goldstein stated among other things that 

plaintiff had "a cervical disc herniation or its equivalent that 

was produced or made symptomatic by the November 28, 2008"

accident. As the judge determined, Dr. Goldstein's report was 

sufficient to place defendant on notice of a potential claim for 

aggravation of a pre-existing condition. Therefore, we reject 

defendant's contention that it did not have notice of the claim. 
13 A-2964-15T2

B. Comparative Analysis. 

Defendant also argues that the jury instruction on

aggravation of a pre-existing condition was not warranted because 

Dr. Goldstein failed to provide a comparative analysis 

distinguishing the injuries sustained in the subject accident with 

any prior injuries to the same body part. Defendant contends this 

comparative medical analysis was required by Davidson v. Slater, 

189 N.J. 166 (2007). Again, we disagree. 

In Davidson, the Court noted that in a personal injury action 

that involves the AICRA limitation-on-lawsuit threshold, a

plaintiff must establish that he or she sustained a bodily injury 

resulting from the "operation . . . or use of" an automobile, that 

results in one of the enumerated categories of injuries, including 

"a permanent injury within a reasonable degree of medical 

probability." Id. at 186 (quoting N.J.S.A. 39:6A-8(a)). The Court 

explained that when a plaintiff claims he or she sustained a 

permanent injury that aggravated a pre-existing condition, the 

plaintiff must present evidence comparing the injury sustained in 

the subject accident with injuries previously sustained to the 

same body parts. Id. at 185-86. 

The Davidson Court noted, however, that when a plaintiff does 

not assert an aggravation claim, the plaintiff can carry his or 

her burden by demonstrating that the subject accident caused a 
14 A-2964-15T2

permanent injury "without having to exclude all prior injuries to 

the same body part." Id. at 170. The Court stated that

[i]f defendant raises a genuine factual issue 

about the causation of plaintiff's claimed 

injuries by pointing to other injuries the 

plaintiff may have experienced, that disputed 

issue of causation is for the fact-finder to 

decide, except in those unusual instances when 

no reasonable fact-finder could conclude that 

the permanent injury was caused by the subject 

accident.

[Ibid.]

On appeal, defendant argues that plaintiff requested the 

aggravation charge and therefore was required to present the 

comparative analysis required by Davidson. Defendant asserts that 

Dr. Goldstein's analysis failed as a matter of law because he

based his analysis of the pre-existing condition solely upon 

plaintiff's subjective complaints. Defendant asserts that the 

doctor failed to review a single record pre-dating the November 

28, 2008 accident.

We are not persuaded by these arguments. In our view, Dr. 

Goldstein provided a sufficient comparison of plaintiff's preexisting condition with the injuries allegedly sustained in the 

subject accident. In his videotaped testimony, Dr. Goldstein 

testified that plaintiff had some low grade degenerative changes 

in her neck, which were "probably existent" before the accident. 
15 A-2964-15T2

The doctor emphasized that plaintiff was asymptomatic, and 

she either had a new disc bulge or low grade herniation "that was 

produced by this accident or whatever was there predating this 

accident was extended or made symptomatic[.]" The doctor based his 

analysis in part on the MRIs performed after the November 28, 2008 

accident, which he indicated showed a pre-existing degenerative 

condition.

Moreover, defendant presented testimony from Dr. Zell who 

opined that plaintiff possibly sustained a lumbar strain in the 

November 28, 2008 accident. He said plaintiff had degenerative 

disc disease in the cervical and lumbar spine, which were preexisting conditions and unrelated to the subject accident. He 

based his opinions on his physical examination of plaintiff; review 

of the records pertaining to the November 28, 2008 accident, 

including the MRIs; and records pertaining to the November 10, 

2007 accident, including a CT scan of plaintiff's neck and x-rays 

of her lower back. 

Considering the evidence as a whole, we are convinced that

the judge did not err by charging the jury on aggravation of a 

pre-existing condition. Dr. Goldstein and Dr. Zell both agreed 

that plaintiff had a pre-existing condition, although they 

disagreed as to whether plaintiff sustained a permanent injury to 

her neck and lower back in the subject accident. 
16 A-2964-15T2

While Dr. Goldstein did not review the diagnostic studies 

that pre-dated the November 28, 2008 accident, he was able to base 

his opinion as to plaintiff's pre-existing condition in part upon 

the diagnostic studies performed after that accident. Dr. Zell 

also opined that plaintiff had a pre-existing disc disease, which 

pre-dated the subject accident. In light of all of the evidence, 

the judge properly instructed the jury on aggravation of a preexisting condition.

C. Request for Modification of Aggravation Charge.

Defendant further argues that the judge erred by denying its 

request to modify the aggravation charge. According to defendant, 

the judge should have instructed the jury that the charge was 

given merely to assist the jury in calculating damages, and not 

as a means to determine if plaintiff had shown that she sustained 

a permanent injury proximately caused by the November 28, 2008 

accident. Again, we disagree. 

Here, the judge correctly found that the model jury charge 

on permanency was sufficient to address defendant's concern. The 

judge noted the jury had to find that plaintiff had a permanent 

injury, whether it was an aggravation of a pre-existing condition

or not. The instructions the judge later provided stated in 

pertinent part:
17 A-2964-15T2

Now in order to recover damages in this 

case, the plaintiff must prove by a 

preponderance of the evidence that she 

sustained injuries which were permanent. And 

she must do that within a reasonable degree 

of medical probability. If you find that 

plaintiff[']s injuries caused by the accident 

were not permanent, your verdict must be for 

the defendant. If you find the injuries caused 

by the accident [are] permanent, then your 

verdict must be for the plaintiff.

An injury shall be considered permanent 

when the body part, or organ, or both, has not 

healed to function normally, and will not heal 

to function normally with further medical 

treatment. Plaintiff must prove this claim 

through objective, credible medical evidence. 

Objective proof means the injury must be 

verified by physical examination, or medical 

testing, and cannot be based solely upon the 

plaintiff's subjective complaints.

We conclude the judge's instructions clearly informed the 

jury that plaintiff could not recover damages unless she proved 

that she sustained a permanent injury that was proximately caused 

by the subject auto accident. Therefore, the judge did not err by 

denying defendant's motion to modify the charge on aggravation of 

a pre-existing condition.

IV.

Next, defendant argues that the judge erred by denying its 

request to bar plaintiff from arguing that range-of-motion tests 

are objective tests upon which a jury could rely in determining 

whether plaintiff sustained a permanent injury. Defendant contends 
18 A-2964-15T2

that the entire theory of plaintiff's case was based on the 

assertion that plaintiff suffers pain and decreased range of 

motion. According to defendant, Davidson precludes a plaintiff 

from establishing a permanent injury under the AICRA limitationon-lawsuit threshold based on range-of-motion tests and subjective 

symptomology.

We are convinced that this argument is without sufficient 

merit to warrant extended comment. R. 2:11-3(e)(1)(E). As noted 

previously, the judge's final instructions to the jury made clear 

that plaintiff had to prove she sustained a permanent injury with 

objective, credible evidence, and her injury could not be proven 

by subjective complaints alone. 

Moreover, Dr. Goldstein's opinion was not based solely on 

range-of-motion tests. As noted, the doctor based his opinion in 

part upon his review of the MRIs. Therefore, the judge did not err 

by denying defendant's application for an instruction to the jury 

regarding range-of-motion tests. 

V.

In addition, defendant argues that the judge erred by refusing 

to provide an adverse inference charge with regard to plaintiff's 

failure to produce certain documents relating to the workers' 

compensation claim she asserted as a result of the November 10, 

2007 auto accident. Defendant maintains the charge was warranted 
19 A-2964-15T2

due to the intentional or negligent disposal of evidence. We 

disagree. 

"Spoliation typically refers to the destruction or 

concealment of evidence by one party to impede the ability of 

another party to litigate a case." Jerista v. Murray, 185 N.J.

175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-

01 (2001)). The duty to preserve evidence arises when (1) there 

is pending or likely litigation and knowledge of this fact by the 

alleged spoliating party, (2) the evidence is relevant to 

litigation, and (3) the opposing party would be prejudiced by the 

destruction or disposal of the evidence. Aetna Life and Cas. Co. 

v. Imet Mason Contractors, 309 N.J. Super. 358, 366 (App. Div. 

1998) (quoting Hirsch v. General Motors Corp., 266 N.J. Super.

222, 250-51 (Law Div. 1993)). 

"In civil litigation, depending on the circumstances, 

spoliation of evidence can result in a separate tort action for 

fraudulent concealment, discovery sanctions, or an adverse trial 

inference against the party that caused the loss of evidence." 

Jerista, supra, 185 N.J. at 201-02 (citing Rosenblit, supra, 166 

N.J. at 401-06). "The spoliation inference permits the jury to 

infer that the evidence destroyed or concealed would not have been 

favorable to the spoliator." Id. at 202 (citing Rosenblit, supra, 

166 N.J. at 401-02). 
20 A-2964-15T2

The instruction should be provided if a party establishes 

that the other party "improperly caused the loss of the evidence." 

Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012) 

(citing Cockerline v. Menendez, 411 N.J. Super. 596, 621 (App. 

Div.), certif. denied, 201 N.J. 499 (2010)). Furthermore, the 

inference may be drawn against the party that negligently or 

intentionally failed to preserve the evidence. Rosenblit, supra, 

166 N.J. at 401-02.

Here, the judge did not err by refusing to provide an adverse 

inference charge to the jury. The record shows that defendant 

asked plaintiff to produce the litigation file related to the 

plaintiff's November 10, 2007 accident. Plaintiff's attorney 

stated that the records had been placed at a private, off-site 

storage facility, but they were either misplaced or could not be 

found. 

The judge found that defendant had not shown that plaintiff 

had intentionally or negligently failed to preserve evidence. The 

record supports that finding. Under the circumstances, an adverse 

inference charge was not warranted.

VI.

Defendant further argues that it was entitled to judgment 

notwithstanding the verdict. Defendant contends plaintiff 

presented insufficient objective credible medical evidence to 
21 A-2964-15T2

support the jury's determination that plaintiff suffered a 

permanent injury, as that term is defined in N.J.S.A. 39:6A-8(a), 

which was proximately caused by the November 28, 2008 accident.

Under Rule 4:40-1, a party may move for entry of judgment 

either "at the close of all the evidence or at the close of the 

evidence offered by an opponent." Rule 4:40-2(b) states that if 

the motion for judgment is denied, it may be renewed in accordance 

with the procedure under Rule 4:49-1 for a new trial. Rule 4:40-

2(b) also states that every motion for a new trial "shall be deemed 

to include, in the alternative, a renewal of any motion for 

judgment made by that party at the close of the evidence." 

Here, defendant did not formally move for entry of judgment 

after plaintiff presented her evidence or at the close of all the 

evidence. Defendant did, however, file a motion for a new trial. 

That motion was premised in part upon defendant's assertion, which 

was made at various times throughout the trial, that plaintiff had 

not presented sufficient objective credible evidence to support 

her claim under N.J.S.A. 39:6A-8(a). The judge denied the motion. 

A motion for judgment notwithstanding the verdict under Rule

4:40-2 must be denied if the evidence, together with the legitimate 

inferences therefrom, could sustain a judgment in favor of a party. 

Lanzet v. Greenberg, 126 N.J. 168, 174 (1991). In considering such 

a motion, the court must accept "as true all the evidence which 
22 A-2964-15T2

supports the position of the party defending against the motion 

and [accord that party] the benefit of all inferences which can 

reasonably and legitimately be deduced therefrom . . . ."

Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of 

Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). If "reasonable 

minds could differ, the motion must be denied." Ibid. (quoting 

Estate of Roach, supra, 164 N.J. at 612). When reviewing a trial 

court's order on the motion, we apply the same standard. See Frugis 

v. Bracigliano, 177 N.J. 250, 269 (2003).

We are convinced that plaintiff presented sufficient evidence 

to support the jury's finding that plaintiff suffered a permanent 

injury, as defined in N.J.S.A. 39:6A-8(a), which was proximately 

caused by the November 28, 2008 accident. Defendant's arguments 

to the contrary are without sufficient merit to warrant discussion. 

R. 2:11-3(e)(1)(E).

Affirmed.